Tapan Sardar vs The State of West Bengal

Ishan Chandra Das, J.—1. Heard the learned Counsel for both the parties.

This criminal appeal has been directed against the judgment and order of conviction dated 17th June, 2015 and 18th June, 2015 respectively passed by learned Additional Sessions Judge, 7th Court, Alipore (South 24-Parganas) in Sessions Case No. 18(11)/2012 (S.T. No. 2(2) of 2013) where learned trial court found the appellant guilty of the offence punishable under Section 376 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/-, in default to suffer rigorous imprisonment for one year more but subject to set off in terms of Section 428 of the Code of Criminal Procedure.

Briefly stated, the case of the prosecution was that in the night of 2nd December, 2011 while the victim, a woman in the neighborhood of the appellant, was sleeping with her child of 2 1/2 years in an open space known as "verandah" in the dwelling house of her father, the appellant all on a sudden came there and forcibly committed rape on her at the point of a knife. When the victim raised alarm, the other members of her father''s family and local people rushed to the place of occurrence and on seeing them the appellant, Tapan Sarder fled away therefrom.

In the next morning the victim went to Basanti Police Station for initiation of a legal proceeding against the appellant to which the Duty Officer of the Police Station concerned assured to take legal action against the miscreant but no action was taken for which she once again went to the said Police Station for lodging the written complaint against the appellant being Receipt No. 1311 dated 07.12.2011 and wrote to the Superintendent of Police, South 24-Parganas, narrating the incident but no action was taken by them for which the victim had to file an application in terms of Section 156(3) of the Code of Criminal Procedure for initiation of the proceeding against the appellant and consequently at the intervention of the Court, the Police Station took initiative for starting Basanti Police Station Case No. 13 dated 06.01.2012 with the allegation of the offence punishable under Section 376 of the Indian Penal Code and on conclusion of investigation charge sheet was submitted against the appellant to stand trial.

Learned trial court in course of trial examined eight witnesses including the victim, her parents, local witnesses and the investigating officer of this case and found the appellant guilty of the offence as complained of, convicted him and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/- or rigorous imprisonment for one year more as pointed out earlier.

Being aggrieved by and dissatisfied with the judgment and order of conviction, this appeal has been preferred by the present appellant mainly on the following grounds:

i) that learned trial court has convicted the appellant without appreciating the evidence on record but on the basis of surmise and conjecture;

ii) that learned trial court failed to arrive at a right conclusion and convicted the appellant though the allegation of rape was not proved beyond all reasonable doubt;

iii) learned trial court convicted the appellant without any medical evidence concerning the rape upon the victim, no wearing apparel of the victim was seized for sending it for forensic test;

iv) there was no reasonable explanation for inordinate delay in lodging the FIR though no attempt was made on the part of the prosecution to establish that appropriate steps on the part of the victim were taken to initiate a legal proceeding against the appellant promptly;

v) learned court below did not care for examining the scribe of the application (subsequently treated as FIR) for proving the same according to law;

vi) learned trial court failed to appreciate the contradiction with regard to the alleged place of occurrence, statement of the victim girl and the statement of her parents, number of salisis in the village etc. as relied on by the prosecution;

vii) learned trial court also failed to take into consideration the defence of the appellant that the prosecutrix being a deserted woman tried to bargain with the appellant at the point of threat of levelling a charge under Section 376 of the Indian Penal Code;

viii) the appellant was not properly examined in terms of Section 313 Cr.P.C., the judgment and order of conviction being bad in law are liable to be set aside;

It is already pointed out that the instant proceeding originated from an application under Section 156(3) of the Code of Criminal Procedure as the Officer-in-Charge of local Police Station as well as the Superintendent of Police concerned did not take appropriate steps at the appropriate stage. Consequently on being charge sheeted the appellant was arraigned before the learned trial court to answer the following charges:

"Firstly, that you on 02.12.11 at about 11.00 P.M. (Night) while the victim. Jasoda Das, wife of Raja Das was sleeping with her son on the Varandah of her father''s house at Dakshin Narayantala, Police Station Basanti, you committed rape upon her by putting cloth in her mouth and putting her to fear by showing knife and thus thereby committed offence punishable under Section 376 of the Indian Penal Code and within the cognizance of this Court of Sessions."

Learned trial court in course of trial examined eight witnesses altogether including the prosecutrix, Jasoda Das (P.W. 1), her parents, Jugal Bar and Susanta Bar (P.Ws. 2 and 3 respectively). One Jogen Mystri neighbour of the appellant and the victim (P.W. 4), Sub-Inspector, Debasish Roy, I.O. of this case (P.W. 7) and S.M. Shahnawaz, the then Judicial Magistrate, 5th Court, Alipore (P.W. 8) who recorded the statement of the victim in terms of Section 164 of the Cr.P.C. whereas two witnesses, namely, Kanai Naskar (P.W. 5) was declared hostile and Sub-Inspector Biddu Paul (P.W. 6) became a formal witness who only proved the endorsement in the written complaint (marked as exhibit-1/2).

The learned Counsel for the appellant, in course of his argument, drawing my attention to the relevant paragraph 4 of the application under Section 156(3) of the Cr.P.C. submitted that the informant who happens to be the prosecutrix herein was not giving correct statement with regard to the alleged offence. Drawing my further attention to the oral testimony of the parents of the victim, he pointed out that the statement of the victim was at variance with the statement of other witnesses particularly her parent in respect of time, place and manner of such occurrence. He also submitted that the prosecutrix never produced the G.D. entry and the copy of the written complaint sent to the Superintendent of Police of the concerned district which created suspicion.

With reference to the statement of the prosecutrix, he urged that no document with regard to ''salishi'' (i.e. amicable settlement of the dispute at the intervention of the local gentlemen) had not been produced during trial to prove the allegations against his client. He also pointed out that the allegation of rape was not proved by any medical evidence creating a shadow of doubt about the veracity of the allegations made out against the appellant. To advance his argument, learned Counsel for the appellant also brought it to my notice the statement in the cross-examination of the victim, "that she would have no problem if Tapan (the appellant herein) had married her" and urged that the victim was a consenting party to the physical union between herself and the appellant, if any, and the appellant cannot be blamed alone - he opined.

With reference to the provisions of Section 114 of the Evidence Act and pointing out the contradictions in the statement of the witnesses with regard to the place and manner of alleged offence, he also submitted that the court is under legal obligation to presume certain facts with regard to veracity of the allegations from the attending circumstances.

To further his argument, learned Counsel for the appellant also drew my attention to the list of the witnesses as noted at page 3 of the petition under Section 156(3) of the Cr.P.C. and confidently urged that save and except Susanta Bar, the father of the prosecutrix none of the listed witnesses was examined by the prosecution in course of trial and opined that from their non-examination on the part of the prosecution, an adverse inference can be drawn against the allegation of rape in terms of section 145 of the Evidence Act - he added.

Mr. Prabir Mitra, learned Counsel for the appellant in course of his impressive argument also submitted that the appellant was not given by learned trial court the scope of giving explanation to the allegations brought against him since learned trial court did not examine his client properly as provided by Section 313(1) of the Code of Criminal Procedure nor the learned court below asked for any assistance of the public prosecutor or the defence counsel in this regard as prescribed by Section 313(5) causing mis-carriage of justice.

To fortify his argument the learned Counsel for the appellant submitted that the initiation of the instant criminal proceeding against his client was done in clear contravention of the principles laid down with the Hon''ble Apex Court in M/s. Priyanka Srivastava and Anr. Vs. State of Uttar Pradesh and Ors., reported in , AIR 2015 S.C. 1758. He also urged that learned Magistrate while entertaining the application under Section 156(3) did not apply his mind with due care and caution.

Clarifying the provisions of Section 114 of the Evidence Act, he submitted with reference to the decision of the Hon''ble Supreme Court in SEVI & Ors. Vs. State of Tamil Nadu, reported in , AIR 1981 S.C. 1230, that when the G.D. at Police Station had not been produced, inference can be drawn adversely causing prosecution case suspicious.

To advance his argument, Mr. Mitra, learned Counsel for the appellant, while denying the allegation of rape against his client, submitted that even if it was assumed that sexual intercourse on the portion his client was committed against the prosecutrix, it cannot be termed as ''rape'' within the meaning of Section 375 of the Indian Penal Code (before it was amended).

Relying on a decision of the Division Bench of this Court in Jayanti Panda vs. State, reported in , 1983 (II) CHN 290, he opined that Section 90 of the Indian Penal Code cannot be called in aid of such a case to pardon the act of the girl and to fasten the criminal liability on the other. To fortify his contention in this regard, he relied on another decision of this Court in Hari Majhi vs. State, reported in , 1990 (1) CHN 191.

Further placing reliance on a decision of the Hon''ble Apex Court in Uday vs. State of Karnataka, reported in , 2003 SCC (Crl.) 775, he submitted that the burden is on the prosecution to prove each and every ingredient of offence, absence of consent being one of them.

Relying on another decision of the Hon''ble Supreme Court in Deelip Singh @ Dilip Kumar vs. State of Bihar, reported in , 2005 SCC (Crl.) 253, he urged that consent to the physical union with a woman by a man cannot always be termed as ''rape'' within the meaning of Section 375 of the Indian Penal Code since consent within the meaning of Section 90 of the Code should not arise from a misconception of fact.

Further relying on a catena of a decisions of the Hon''ble Apex Court, he also urged that the courts while dealing with an offence of rape, the court should bear in mind that false charges of rape are not uncommon and the medical evidence in this regard should be looked into with proper circumspection of a particular case and with reference to any decision of the Hon''ble Supreme Court in Mohon Lal Vs. State of Rajasthan, reported in 2003 SCC (Crl.) 1383, he pointed out that the prosecution shall prove the allegations beyond doubt since the omission and contradiction found in the cross-examination of the prosecutrix creates a doubt about the truthfulness of the prosecution version - he opined.

The learned Counsel for the State, at the very outset, while supporting the findings of the learned trial court submitted that learned court below found the appellant guilty of offence of ''rape'' within the meaning of Section 375 of the Indian Penal Code, as committed by him on 02.12.2011. He admitted with all fairness that no medical evidence with regard to alleged rape was produced before learned trial court but in the absence of any medical evidence, no adverse inference with regard to commission of the alleged offence can be drawn.

Relying on a decision of the Hon''ble Apex Court in B.C. Deva @ Dyava vs. State of Karnataka, reported in , (2008) 2 SCC (Crl.) 253, he submitted that the Hon''ble Apex Court upheld the conviction of an accused of a case where he was found guilty of the offence punishable under Section 376 of the Indian Penal Code, solely on the statement of the prosecutrix without searching any corroboration from any corner including the medical evidence.

Taking into account the examination of the appellant in terms of Section 313 of the Code of Criminal Procedure, he submitted that the burden lies on the accused to prove any prejudice for any defect for non-compliance in the examination under Section 313 of the Cr.P.C. which occasioned failure of justice to him but mere allegation that such examination was not properly done is not sufficient.

In this context he relied on a decision of the Hon''ble Apex Court in Nar Singh vs. State of Haryana, reported in , (2015) 1 SCC 496 and opined that the evidence of the witnesses was recorded in his presence and he was aware of the allegations and proof brought against him but he did not raise any objection against the examination at the appropriate stage and at this stage, it would not be proper and helpful for him to raise this issue. To conclude his argument learned Counsel appearing for the State relying on a decision of the Hon''ble Supreme Court in the State of Uttar Pradesh vs. Jagdeo and Ors., reported in , (2003) 1 SCC 456 and confidently urged that mere faulty investigation cannot be a ground for acquittal of the accused, for the fault of the prosecution, the perpetrator of ghastly crime cannot be allowed to go scot-free.

In the case in hand, the prosecutrix is a married woman having a child of 2 1/2 years when the alleged offence was committed. The place of alleged occurrence was the father''s house of the victim and in the night of incident, a performance on ''Ramayana'' was organised within the village area where the members of her father''s family were present and it is alleged that taking advantage of her loneliness at the place of occurrence, the appellant committed rape on her at the point of a knife and such an act of sexual intercourse on her person was committed by the appellant herein.

Learned Counsel for the appellant, in course of his argument, tried to establish that the victim was a consenting party and as such no offence was committed by the appellant since the sexual intercourse was an act of bilateral effort to enjoy the sex. Relying on a catena of a decisions of this Hon''ble Court as well as the Hon''ble Supreme Court, as referred to earlier, he tried to establish that the appellant should not be held responsible for his act though learned trial court in the impugned judgment held guilty of the offence punishable under Section 376 of the Indian Penal Code. Clarifying the provisions of the definition of the term ''rape'' as defined under Section 375 of the Code, as it was on the date of alleged incident - he reiterated that his client deserved an order of acquittal from the charge levelled against him. He also submitted that the tacit consent of the prosecutrix was obtained by the appellant but the subsequent events like leaving the victim at the house of the appellant, arrangement of ''salish'' by the local people, the prosecutrix''s repeated approach to the local authorities for initiation of a legal proceeding against the appellant never indicated that the prosecutrix gave consent to the sexual intercourse. She being a married woman having husband and a child cannot be a subject to consent of a sexual intercourse with a third party since it is considered as ''a sin'' in our society and no cogent reason was given by the appellant that there was a consent of the prosecutrix for enjoying sex.

Learned Counsel for the appellant, in course of his argument, drew my attention to a statement of the victim where it was said - "it is correct if Tapan had married me I would not have problem" (P.W. 1 in her cross-examination at page 3) and accordingly he would like to impress that this was the reason for which his client had been implicated. If we consider this aspect in the light of the subsequent questions put to her suggesting that she had affairs with the appellant at one point of time and she wanted to marry him to which the victim was flatly denied, it is falsifying the defence that the sexual intercourse took place with the consent of the victim.

Section 375 of the Code as stood on 02.12.2011 enjoins - sexual intercourse by a man with a woman is not an offence if it is done with her consent within the meaning of Section 90 of the Indian Penal Code and the burden lies on the accused to establish that he had done so with the valid consent. Different Hon''ble Courts including the Hon''ble Apex Court in a catena of decisions held that "consent is an act of reason accompanied by deliberation, a mere act of helplessness, resignation in the face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be consent".

Frankly speaking, that there is not a straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is obtained under threat, the Court must consider the evidence before it and the attending circumstances to come to a definite conclusion because each case has its own peculiar fact which may have bearing on the question whether consent was given or not.

In the instant case, it was alleged that the appellant committed offence of rape on the victim at the point of a knife taking advantage of her loneliness while she was sleeping in the varandah at her father''s house with her 2 1/2 years old daughter. Evidence of the prosecutrix (P.W. 1) and the attending circumstances unmistakably pointed out that there was a hue and cry at the place of occurrence and there was no question of mistaken identity of the miscreant.

Learned Counsel for the appellant was critical in submitting that learned trial court in the impugned judgment came to the conclusion that the victim was raped by none but the appellant herein and convicted him, finding him guilty of the offence punishable under Section 376 of the Indian Penal Code and sentenced him to suffer imprisonment and to pay a fine by the judgment dated 18.06.2015 without searching for any corroboration by any medical evidence. In this context reliance can be placed on a significant decision of the Hon''ble Apex Court in Wahid Khan vs. State of Madhya Pradesh, reported in , AIR 2010 SC 1 where the Hon''ble Court held - ''rape is a crime and not a mental condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether rape has occurred or not is a legal conclusion and not a medical one".

Hence, placing reliance on a decision of the Hon''ble Apex Court as quoted above, it can safely be concluded that absence of any medical evidence cannot be said to be fatal if the allegation of rape is otherwise proved.

Learned trial court while dealing with the merit of the case found the accused/appellant herein guilty on the basis of the evidence and materials on record and in the given facts and circumstances of the case, I am unable to take a different view.

In this context it would not be irrelevant to quote an observation of the Hon''ble Supreme Court in Bodhisatta Goutam vs. Subhra Chakraborty, reported in , (1996) 1 S.C.C. 490 where the Hon''ble Apex Court observed - rape is thus not only a crime against the person of a woman (victim), it is a crime against the society. It destroys the entire psychology of a woman and pushes into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society, which on coming to know of the rape looks down upon her in derision and contempt. Rape is therefore, the most hated crime. It is a crime against basic right of woman and is also violative of the victim''s most cherished fundamental rights, namely, ''right to life'' contained in Article 21 of the Constitution of India.

Hence, having regard to the facts and circumstances of the case and on the strength of the discussions made above, I firmly conclude that learned trial court did not commit any mistake in holding the appellant guilty of the offence punishable under Section 376 of the Indian Penal Code and the sentence as imposed upon him was proportionate to the offence as committed by him.

Learned Counsel for the appellant with reference to the decision of the Hon''ble Apex Court in M/s. Priyanka Srivastava and Anr. (Supra) submitted that learned Magistrate while sending the application under Section 156(3) of the Cr.P.C. to the police station concerned did not comply with the guidelines, as formulated therein but I am afraid, the facts and circumstances of that case were quite different and the decision of the Hon''ble Court in M/s. Priyanka Srivastava (Supra) was not squarely applicable in the present facts and circumstances of the case. Even if for the sake of argument, it is accepted that the learned Magistrate did not follow the guidelines, it cannot be overlooked that said decision was reported long after the initiation of this proceeding and a meritorious case should not be thrown away merely on some technical fault where the victim, who is crying for justice, had no control over it.

Accordingly, I find no merit in the present appeal which stands dismissed.

The judgment and order of conviction passed by learned trial court in Sessions Case No. 18(11)/12 (S.T. 2(2)/13) are hereby confirmed.

The bail bond furnished on behalf of the appellant stands cancelled and he is directed to surrender before learned trial court within one month from the date of this judgment, to serve out remaining part of the sentence.

Let a copy of the judgment along with the lower court record be sent to the learned trial court forthwith for necessary action.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.